Citation Nr: 22017650 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-23 580 "DATE: March 25, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to April 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the September 2020 appellate brief, the Veteran's representative mistakenly asserted that an increased rating claim for PTSD was on appeal. A claim for a disability rating in excess of 70 percent for the Veteran's service-connected PTSD was adjudicated in the March 2020 Statement of the Case (although it was mistakenly labeled as a claim for a rating in excess of 10 percent for the Veteran's service-connected PTSD). In the May 2020 Substantive Appeal, the Veteran expressly indicated that he was only appealing the issues of a higher rating for bilateral hearing loss and entitlement to a TDIU. As a valid Substantive Appeal was not received regarding an increased rating claim for the Veteran's service-connected PTSD, the issue is not on appeal and is not subject to the Board's appellate review. Although the Board regrets the additional delay, the below requested claims must be remanded for additional evidentiary development to ensure there is a complete record upon which to justly decide the Veteran's claims. 1. Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected bilateral hearing loss is remanded. In the May 2020 Substantive Appeal and the September 2020 appellate brief, it was alleged that the Veteran's bilateral hearing loss has worsened in severity since it was last examined at the March 2018 VA examination. The United States Court of Appeals for Veterans Claims has held that when a veteran alleges that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Therefore, as the Veteran last underwent a VA examination for his service-connected bilateral hearing loss in March 2018, more than four years ago, and he has suggested his symptoms have worsened, he should be afforded a new VA examination to assess the current nature, extent, and severity of his symptomatology. Additionally, the record reflects that the Veteran underwent a VA audiogram in December 2016 slightly prior to the period on appeal, the complete results of which (including pure tone thresholds) have not been associated with the electronic claims file. As this audiogram evidence is pertinent and may assist the Veteran in the substantiation of his claim, the RO is requested to obtain the complete audiometry results from the December 2016 VA audiology assessment. The Board notes that Maryland CNC speech recognition testing was completed at this VA audiology assessment and the scores have been documented in the electronic claims file. 2. Entitlement to a TDIU is remanded. The Veteran seeks entitlement to a TDIU based on the cumulative effect of his service-connected posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus. The Veteran works on a part-time basis as a barber/hair stylist, and he has alleged that his bilateral hearing loss and tinnitus make it difficult to hear and interact appropriately with clients, and his service-connected PTSD results in general irritability, mood swings, and angry outburst incompatible with full-time, substantially gainful employment. The Veteran has met the schedular TDIU criteria under 38 C.F.R. § 4.16(a) for the duration of the appellate period. In the September 2020 appellate brief, the Veteran's representative requested an updated VA psychiatric examination, as the Veteran last underwent such an evaluation in March 2018, and he has alleged a worsening of his mental health symptoms that may assist in the substantiation of his TDIU claim. Given the age of the Veteran's last VA psychiatric examination, the Board agrees that updated findings are necessary to justly adjudicate the Veteran's TDIU claim, and the matter is remanded for such an examination. During the appeal, the Veteran has submitted evidence detailing his social security income. As noted in the May 2020 Substantive Appeal and the September 2020 appellate brief, the Veteran has been receiving early retirement social security benefits since 2009, when he turned 62 years old. There is no indication that the Veteran ever filed for or received social security disability benefits, and in the absence of evidence suggesting relevant social security records exist, VA's duty to assist in obtaining social security records has not been triggered. See e.g., Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The electronic claims file indicates that the Veteran has undergone private primary care treatment for his service-connected disabilities during the appellate period from Dr. G.L. As these records may assist the Veteran in substantiating his claim, the RO is requested upon remand to undertake appropriate efforts to obtain the records of Dr. G.L for evidentiary consideration. 38 C.F.R. § 3.159(c)(1). Lastly, the RO is requested to obtain updated VA treatment records from March 2020 to the present for evidentiary consideration. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2020 to the present. 2. Obtain the complete audiogram results from the December 13, 2016 VA audiology assessment, to include specific pure tone threshold results. 3. Ask the Veteran to complete a VA Form 21-4142 for the complete records of Dr. G.L. during the appellate period. Make two requests for the authorized records from Dr. G.L. unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate VA examiner to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. [Continued on Next Page] 5. Schedule the Veteran for an examination by an appropriate VA examiner to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner should identify any symptoms attributed to the Veteran's PTSD, alone, and discuss their impact on his employability. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Galante, M., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.